A D.C. Church Fights Viewpoint Discrimination, with DOJ’s Support

It’s a bit disconcerting that a church would see litigation as an acceptable way to pursue its mission here on Earth. Yet last fall the Archdiocese of Washington sued the Washington Metropolitan Area Transit Authority, and we must say that it did so on pretty good grounds.

Here’s what the case is about, and be forewarned: It involves Christmas, though not, or at least not yet, President Trump, as we’ve heard no tweeting of his about the matter.

WMATA raises revenue by selling ad space on its buses and trains. Back in October, the archdiocese tried to buy space on buses for an ad that would run starting in early December. The ad would help promote the church’s “Find the Perfect Gift” Christmas campaign by sending the message that viewers should “seek spiritual gifts during this Christmas season” and directing them to a web site encouraging people to make charitable gifts, attend church services, and pursue public service opportunities.

WMATA rejected the church’s proposal on grounds that it failed to comply with its guidelines, which prohibit ads that “promote or oppose any religion, religious practice or belief.” The archdiocese then sued the transit authority in federal district court, where it lost. As it also did on appeal to the D.C. circuit court. It has now appealed to the full court, which will hear the case next month.

But in Archdiocese v. WMATA, it is already apparent that the problem lies with the transit authority, not the church. For in rejecting the archdiocese’s proposal, the authority committed an act of unconstitutional viewpoint discrimination. It did so by following its own policy. As the Justice Department observes in an amicus brief, WMATA accepts ads that “contain Christmas messages from commercial and charitable viewpoints, so long as they are not religious.”

Viewpoint discrimination (more accurately, viewpoint nondiscrimination) does not appear in so many words in the Constitution. But it is grounded in High Court precedents holding that government may not disfavor speech from a religious perspective. When government does that, messages encouraging religious exercise are inevitably discouraged. Viewpoint discrimination thus is doubly protected against by the First Amendment—by its free exercise and free speech clauses.

The Justice Department’s stand against viewpoint discrimination is a reminder that the agency does not spend all of its time on special investigations, though there are days when it may seem that way. The department has policy priorities, and protecting religious liberty and free speech is one of its highest. That is what this amicus filing in the nation’s capital confirms, as does the one in Colorado in behalf of Masterpiece Cakeshop, argued before the Supreme Court in late fall. Expect the department to continue filing in defense of these constitutional rights—in both the district and appellate courts, including the nation’s highest.

This post originally appeared on Weekly Standard

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